[Translated by Human Rights Watch from the Hebrew original]
Beer Sheva Magistrate Court BS 008759/05
Before: The Honorable Judge Ido Rozin
In the Matter: The State of Israel
Represented by Attorney Igal Mindel The Plaintiff
Person Unknown The Defendant
I am presented with a request according to article 212 of the Planning and Building Law, 1965 (The Law), to issue a demolition order without conviction against a structure built without permit, after the plaintiffs efforts to locate the individual who had built the structure have failed.
The statement attached to the request reveals that on September 7, 2005 an inspector from the national unit for building supervision in the South District made a visit and discovered that construction had taken place, land was used, and a structure was erected in an area west of route 25, at coordinates 195214/557302 (new Israel Grid) or in its vicinity (The land).
At the aforementioned site, on the aforementioned date or close to it, a tin structure was erected, apparently used as a livestock shed (the Structure), on a total area of 30 square meters, without being issued a building permit, in an area where such a permit cannot be granted, and against the law.
In accordance with the Planning and Building regulations (legal procedures for granting orders solely on the basis of the plaintiffs request), 1982, instated by law, the plaintiff has been granted the right to submit this request, in the presence of one party alone.
It shall be noted, that in accordance with regulation 2 of these regulations, it has been determined, that the condition for granting such an order, in the presence of one party alone, can be done only if the court sees that it is impossible or impractical to summon forth to the hearing a person who may be damaged by the enactment of the order
In the statement which accompanies the request, it is argued that the plaintiff cannot prove who had committed the offence, or locate that person, and that even after the notice had been affixed to the structure, no individual had approached the plaintiff to argue against the demolition.
In these circumstances, the conditions justifying a hearing in presence of the plaintiff alone have been fulfilled.
The purpose of a demolition order according to article 212 is to maintain civil order and prevent the nuisance caused to the public by the very existence of an illegal structure. On this issue, there is a clear distinction between the power to grant a demolition order according to article 205 to that provided by article 212. While article 205 presents additional means for punishing the building offender, the point-of-departure in article 212 is, that there is not and will not be a conviction in the matter of the structures construction, and that a demolition without conviction, is not meant as a punitive measure against the building offender, but is done to remove an obstacle to others, to maintain civil order, and to prevent a nuisance to the public (see criminal appeal 1250/00 Hativa Savag vs. the State of Israel, Supreme Court rulings, volume 58, pg. 421). Therefore, while a demolition order on the basis of article 205 is aimed against the offender, the demolition order on the basis of article 212 is aimed against the structure built illegally (see on this matter the statements made by His Honor Judge Kedmi in criminal appeal 3490/97 Eliahu Itzhak vs. The Regional Planning and Building Council of Kfar Sava, verdicts 52, 136 (1)).
On the other hand, in order to grant a demolition order, without conviction, it does not suffice to prove the existence of conditions enabling a demolition, but to also prove that in the circumstances of the matter there is an important public interest that justifies issuing the demolition order (on this matter see the aforementioned criminal appeal 3490/97 as well as criminal appeal 124/01 Zeev Nikar vs. The State of Israel, verdicts 56 151(3), criminal appeal (Beer Sheva) 432/90 Jibrin Sliman vs. The State of Israel, Takdin regional 93 (2), 420 and criminal appeal (Haifa) 1051/98 Breir vs. The State of Israel, Regional rulings 24 (10), 397).
Public interest may lie, among others reasons, in the fact that in not carrying out the demolition the perpetrator is rewarded; in preventing the chaos caused by illegal construction; and in the concern that not issuing a demolition order may be interpreted as granting permission de facto, a situation which has no place in a proper state of law.
Unfortunately, building violations have become a common occurrence, a fact that constitutes a serious and direct assault on the rule of law and the Supreme Court has emphasized in a long list of verdicts, that the court is instructed to not tolerate the situation and to implement a policy that will prohibit individuals from taking the law into their own hands (see aforementioned criminal appeal (Beer Sheva) 432/90 Sliman and the references listed within it).
Therefore, as long as such a structure remains standing without permission, there is no relevance as to when it was established, and the proper course of action against the violation in such an instance of construction without permit, where the owners are unknown, is to request a demolition order without conviction, as the plaintiff has done in this event (see aforementioned criminal appeal 1253/00 Savag and the references listed within it).
In this matter, the plaintiff claims that the structure has been build on lands undergoing a settlement process according to the settlement ordinance and that ownership has not yet been established.
Since it has been claimed, that the structure had been built without permit, and on the basis of all the above, it is possible to determine that the conditions of article 212 have been fulfilled and that there is public interest in issuing a demolition order.
Due to all that has been stated above, a demolition order is hereby granted for the structure as defined above.
The plaintiff will see to it that a copy of the demolition order will be posted to the wall of the aforementioned structure and that demolition will not be carried out until after the period of time granted for appeal as stated in article 250 of the law.
As a footnote, the court recommends that the plaintiff document the act of posting [the demolition order].
Granted today November 21, 2005, in the absence of both parties.
Ido Rozin, judge